Abstract

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Virtually all criminal law scholars, and many jurists, Republican legislators, and special interest groups bemoan the over-federalization of criminal law, which they perceive as the inevitable result of too many federal laws being enacted and enforced at the whims of Congress and federal prosecutors. This uncontrolled growth, they argue, disrupts the delicate balance between state and federal law enforcement systems by draining resources and attention away from local law enforcement.

We believe that such claims are largely unfounded or misdirected. While it is true that there are more federal criminal laws in existence than ever before, empirical evidence indicates that the size of the federal criminal code has little (if anything) to do with the annual number of federal prosecutions. In fact, as we demonstrate in Part I, while federal criminal caseloads have grown in recent decades almost all of the growth can be attributed to tougher federal drug and immigration enforcement policies, and not to a creeping federal encroachment upon areas traditional state concern. A review of federal criminal caseload data from 1940 onward reveals that rates of prosecution for most offense types remained stable, indicating there’s been no seismic change in the balance between federal and state law enforcement systems. In fact, most indicators suggest that federal resources continue to be expended primarily to vindicate and protect federal interests, while states remain the first line of defense against violent crimes, sex crimes, property crimes, and the like.

In Part II, we explore and analyze scholars’ condemnation of federal criminal law enforcement as arbitrary or disruptive of states’ ability to craft local solutions to local problems. We respond directly to concerns over sentencing disparities between the state and federal systems, and the perception that some defendants are arbitrarily selected for prosecution. We argue that, in the vast majority of cases, federal prosecutors make reasoned, sensible decisions when selecting cases for federal prosecution. Even assuming arguendo that selection for federal prosecution was random, we find no support in case law for the proposition that random selection would be unjust or violate constitutional principles. The very nature of Our Federalism not only permits but encourages state and federal entities to identify and protect their (frequently overlapping) interests as they see fit.

Finally, in Part III, we respond to the criticism that the over-federalization of criminal law has created an explosion of regulatory offenses without culpability, and a series of overbroad and vague federal criminal prohibitions. There are few if any unwitting individuals wrongly imprisoned because of unfair prosecutions. Instead, Congressional drafting deficiencies have been resolved by our long history of Supreme Court intervention in cases where federal statutes might otherwise raise due process concerns. The Court has successfully imposed extra-textual mens rea requirements to public welfare offenses, and similarly narrowed the interpretation of mail fraud, obstruction, and RICO.